CIVIL APPEAL 134 of 1998 on 18 December 1997

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl. Revision No.134 of 1998 Decided on 15. 9.2009.Mohan Chand Joshi ....... Petitioner. Versus State ( U.T.Chandigarh ) ...... Respondent. Crl. Revision No.135 of 1998Mohan Chand Joshi ....... Petitioner. Versus State ( U.T.Chandigarh ) ...... Respondent.

Crl. Revision No.135 of 1998

CORAM:- HON'BLE MR. JUSTICE K.C. PURI

Present : Mr. Gurinder Pal Singh, Advocate for the revisionist in both cases. Mr. Rajeev Sharma, Advocate for U.T.Chandigarh in both cases.

K.C.PURI, J.

By this common order, I intend to dispose of Criminal Revision No.134 of 1998 titled Mohan Chand Joshi vs. State( U.T.Chandigarh ) and Criminal Revision No.135 of 1998 titledMohan Chand Joshi vs. State ( U.T.Chandigarh ) , as both therevisions arise from the same FIR and against the same accused.For convenience, facts are being taken from Criminal RevisionNo.134 of 1998.

These are two revision petitions against the judgmentdated 18.12.1997 passed by Shri S.S.Lamba, Additional SessionsJudge, Chandigarh, who dismissed the appeal, while reducing thesentence of imprisonment awarded by the trial Court from two yearsrigorous imprisonment to one year rigorous imprisonment and bymaintaining the amount of fine as Rs.1000/-, whereas ShriJ.S.Khushdil, learned Judicial Magistrate Ist Class, Chandigarh videjudgment and order dated 17.5.1986 sentenced the revisionist toundergo rigorous imprisonment for a period of two years and to pay afine of Rs.1000/- and in default of payment of fine to undergorigorous impressment for three months holding him guilty underSection 409 of the Indian Penal Code (in short – the IPC).

The brief facts of the prosecution case are that on thecomplaint made by Chief Executive Officer, Haryana StateFederation of Consumer Cooperative Whole Sale Stores,( in short –the Federation) against the revisionist. It is alleged in the complaintthat revisionist was appointed as salesman in this Federation on1.10.1973 and he took over the charge of the stocks of retail shop on1.10.1973. The normal duties of a salesman were to receive goods from the main godown through an indent duly signed by him and thegodown keeper after due checking and satisfaction and to sell thesame in retail at his shop at the rates and in accordance with thepolicy approved by the Federation. After the close of the day, therevisionist was required to prepare the sales summaries of the salesmade during the day and to hand over the sales proceeds of the dayto the cashier of the Federation against receipt. He was alsoresponsible for stocking, selling custody and accountability of thegoods given to him by the Federation from time to time. The financialtransactions of the goods supplied to him and the sales duly made byhim were kept by the office of the Federation in a register called asStock Liability Register. The entries made in this register by theoffice were also signed by the salesman in token of having acceptedthe liability from time to time. The revisionist was also supposed toconducted physical verification in the presence of the salesman andthe list of goods physically verified is signed by the auditors as wellas by the salesman in token of its correctness. According to physicalverification report for the period ending 31.12.1975 the value ofgoods in the custody of Mohan Chand, salesman, amounted toRs.88,119.53ps. This was taken as opening balance of stocks withthe salesman from 1.1.1976. The value of goods given to the salesfrom 1.1.1976 to 3.2.1976 as well as sales affected by him and theamount deposited with the Federation. As per physical verification ofthe stocks in the charge of revisionist for the period ending 30.6.1975and 31.12.1975 heavy shortages were found in the stocks entrusted

Analysis

to him in the capacity of a salesman. The revisionist was therefore,asked to hand over the charge of his stocks to Ram Lal GodownKeeper and the same was handed over the charge of stocks worthRs.58,672-73ps to Ram Lal Storekeeper on 3.2.1976 whereasaccording to the stock liability register, the value of goods in hischarge as on 3.2.1976 should have been Rs.67,397-20ps. Therewas thus a shortage of stock duly entrusted to him in the capacity ofa salesman worth Rs.8724-47ps. which revisionist has embezzled.The investigation of this case was conducted by SI Brij Lal, who tookinto possession necessary documents and recorded the statementsof the prosecution witnesses. After completion of necessaryinvestigation, challan against the revisionist was presented in the trialCourt for trial.

On appearance of the accused in the Court, copies of thedocuments were supplied to the accused under rules.

Finding a prima facie case, the accused was charge-sheeted under Section 409 IPC to which he pleaded not guilty andclaimed trial.

In order to establish its case, prosecution has examinedVijay Kumar (PW-1), Sudama Mool Chandani (PW-2), Om Parkash(PW2/B), Jagdish Chander (PW-3), Ramesh Chander (PW-4),Subash Chander Jain (PW-5), K.N.Parshad (PW-6), Om Parkash(PW-7), Mohinder Singh (PW-8), SI Brij Lal (PW-9), SI Nana Ram(PW-10), K.K.Sharma (PW-11), Ram Lal (PW-12), Shri J.P.Gupta(PW-13), SI Sandel Singh (PW-14) and Nanak Singh (PW-15) and the evidence was closed by order of the Court as the prosecutionfailed to conclude its entire evidence.

After conclusion of the trial, the accused was examinedunder Section 313 Cr.P.C., all the incriminating evidence was put tohim which he denied and pleaded his false implication. He hasadmitted that he was working as Salesman. He has also admittedthat the goods were received from the CONFED Store throughindent, and after that those were put on sale. He has admitted thatthe entries were made by the storekeeper and his signatures wereobtained. He has stated that the original liability register has beenintentionally concealed by the prosecution, just to prosecute him. Hehas stated that the signatures on the liability register were obtainedunder pressure and undue influence. The accused has examinedSher Singh as DW-1 and Suresh Kumar as DW-2 and then close hisdefence evidence.

The learned trial Court, after appraisal of the evidence,found the accused guilty and sentenced him as narrated above. Therevisionist filed appeal against that judgment. The appellate Court onre-appraisal of the evidence did not find any merit in the appeal anddismissed the same, however, while reducing the sentence from twoyears to one year only.

Still dis-satisfied with the aforesaid judgments and ordersthe accused/revisionist filed instant revision petition before thisCourt.

I have heard learned counsel for the revisionist and learned State counsel and have gone through the records of thecase.

Learned counsel for the revisionist has submitted thatprimary evidence of embezzlement is missing in the present case.The liability register, which reflected all the entries in respect ofissuance of articles to the salesman are incorporated in the liabilityregister. The original liability register has been withheld by theprosecution on the ground that there were cuttings in the entries inthat register. The new liability register was prepared. The signaturesagainst the entries were taken by the Officers under the threat. Evensome of the entries do not bear the signatures of petitioner. Since theprimary evidence is missing and as such the prosecution has failedto prove the alleged embezzlement.

I have considered the said submission and have gonethrough the records of the case.

Arguments

Both the Courts below have thrashed this point andreached to the conclusion that preparation of new liability registerdoes not create doubt on the prosecution version. Signatures ofrevisionist appear on all the entries except one or two entries inrespect of issuance of articles. Even if, the entries, which did notbear the signatures of revisionist, ignored in that case also theembezzlement stood proved. Moreover, in this case, the primaryevidence is not the liability register but the primary evidence is in theshape of issuance of indent for sale of articles by the petitioner, whohappened to be salesman at that time. The revisionist has failed to count for the articles issued to him through indents and there wereshortage, as observed by both the Courts below. So, no scope forinterference in the present revision petition is made out.

The learned counsel for the petitioner has furthersubmitted that revisionist filed complaint against the other officers,who have actually embezzled the amount. The learned JudicialMagistrate Ist Class, has not reached to the logical conclusion asprovided under Section 202 of the Code of Criminal Procedure. Thebig guns have been shielded to make the petitioner scape goat.

I have carefully considered the said submission but donot find any force in that submission. In case the Judicial MagistrateIst Class, has not taken the cognizance, the petitioner would havethe remedy by filing a private complaint but he has not done so.So, now after so many years, the petitioner cannot grumbled overthe said matter.

Learned counsel for the revisionist has further submittedthat some time the goods were taken by the higher officers on creditbasis. The petitioner being a small employee could not say no to theofficers and helm of the affair.

Both the Courts below have not considered this aspect.

I have carefully considered the said submission but donot find force in that. The goods alleged to be given on creditalthough not proved but according to the petitioner itself the value ofthe same is very less i.e Rs.800/-. Even if, some officers havetaken the goods on credit in that case, the petitioner was required to issue the bills and get the signature of that officers. But, there isnothing in this case on the file. So, the above said argument is alsowithout any substance.

Learned counsel for the revisionist has further submittedthat the petitioner has been discriminated. According to the policy ofthe department, the salesman was entitled to have a shortage of halfmeter per every than of cloth. This concession is allowed to theemployee as the same extra cloth has to be given to the person, whopurchased the same.

The said concession has been withheld in the case ofpetitioner regarding shortage on account of embezzlement.

I have carefully considered the said submission but donot find any merit in that submission.

Even if, concession of shortage by half meter is allowed

Issues

to the petitioner in that case also the huge shortage of articles wouldnot be accounted for. The shortage can be in respect of the clothesonly. So far as other items such as tyres are concerned therecannot be shortage in respect of those items. So, the petitionercannot have benefit of the above said argument.

Learned counsel for the revisionist has submitted thatthere is overwriting in some of the indents, the benefit of the samehas not been given to the petitioner.

I have carefully considered the said submission but do not fine any merit in that submission.

No specific act of overwriting prejudicial to the petitioner has been pointed out during the course of arguments.

The learned counsel for the petitioner has submitted thatin para-5 of the grounds of revision the petitioner has given thedetails in respect of shortage of value of Rs.82,686.58ps. againstthe shortage of Rs.88,119.53ps if these six items are taken intoaccount, there is no shortage. I have carefully considered the said submission but donot fine any merit in that submission.

No reasonable ground for arriving at the conclusion thatshortage of the stock is counted for as detailed in para-5 of thegrounds of appeal. These figures have been made by the petitionerfor the first time in the revision petition, which cannot be looked into.The trial Court has appreciated the evidence on the record of thiscase minutely. The first Appellate Court reprised the said evidencecarefully and no scope is left for interference in the concurrent findingof both the Courts below proving guilt of the petitioner.

Consequently, the conviction recorded by both the Courtsbelow stand affirmed.

So far as quantum of sentence is concerned, theshortage relates to the period 1974-76 i.e. more than 33 years. Thepetitioner is facing the protracted trial since the year 1982 i.e. morethan 27 years.

Learned counsel for the petitioner has stated at the barthat the petitioner has undergone incarceration for a period of 70days out of substantive sentence of one year. It would not be in the interest of justice to send the revisionist to custody, who has beenfacing the agony of trial for the last 27 years and had also undergoneincarceration of 70 days.

Consequently, the sentence is reduced to the alreadyundergone by him. However, the sentence of fine under Section 409IPC is enhanced to Rs.3000/-.

With the above said modification in the sentence, therevision petition stands disposed of.

A copy of this judgment be sent to the trial Court for strictcompliance.

September 15, 2009sv

( K.C.PURI ) JUDGE